[1]
References in this judgment to the "main application" refer
to the spoliation application which is the subject of
the appeal
heard simultaneously herewith. The facts of the main application will
not unnecessarily be repeated herein.

[2]
The main application was granted by the court
a quo on
6 August 2007.
The
appellants filed a notice
of
application for leave to appeal. Subsequent to the appellants lodging
their notice
of
intention to make application for leave to appeal, the respondents
brought an application in terms of rule 49(11) to declare
the order
in the main application to be executable pending the termination of
the appeal. This application was granted by Preller
J on 17 August
2007. On the same date he also refused leave to appeal.

[3]
This appeal is with the leave of the Supreme Court
of
Appeal.

[4]
It is so that normally a rule 49(11) execution order is not
appealable. The following was stated in Minister
of Health and Others v Treatment Action Campaign and Others (No 1)
[2002] ZACC 16; 2002 (5)
SA 703 (CC)

"In
terms of both the common law and the Supreme Court Act 59 of 1959, an
order granting leave to execute pending an appeal
is considered to be
purely interlocutory and not appealable. There are important reasons
of policy why this is so. In particular,
the effect of granting leave
to appeal against an order of interim execution will defeat the very
purpose of that order. The ordinary
rule is that the noting of an
appeal suspends the implementation of an order made by a court. An
interim order of execution is
therefore special relief granted by a
Court when it considers that the ordinary rule would render injustice
in a particular case.
Were the interim order to be the subject of an
appeal, that, in turn, would suspend the order." (at
para 5)

[5]
The Constitutional Court
further
held that:

"Having
granted leave to execute, permitting an aggrieved litigant to appeal
that execution order pending the final appeal
would generally result
not only in the piecemeal determination of the appeal, but would
'stultify the very order ... made'"
(at
para 10)

"All
these considerations make it plain that it will generally
not be in the interests of justice for a litigant to be granted leave
to appeal against an interim order of execution." (at
par 12, my emphasis)

[6]
This case however does not fall in the general category referred to
above. The notice of appeal is not only directed at the
exercise of
the discretion in granting the rule 49(11) relief but also states in
paragraph 1.1 and 1.2 that leave to appeal is
sought against:

"1.1
Prelier J's refusal to postpone the application to afford the
appellants a reasonable opportunity to file answering affidavits;

1.2
Prelier J's dismissal of the appellants' point in
limine relating
to the non-joinder of certain third parties;"

[7]
I shall firstly deal with these two grounds.

Opportunity
to answer

[8]
Ground 1.1 has to be seen in the light of the fact that the
application was served on the appellants' Pretoria correspondent
at
11h20 on 15 August 2007. Prelier J ruled that the application was to
be heard simultaneously with the application for leave
to appeal in
the main application i.e. on 17 August 2007. A notice of set down was
only served on the appellants at 09h11 on 16
August 2007. This left
the appellants with only twenty four hours notice of the date and
time for the hearing of the application.

[9]
An affidavit by the appellants' Johannesburg attorney, Ms van der
Linde, was delivered under protest. In that answering affidavit
she
explicitly stated that the appellants had insufficient time to
prepare an answer. The respondents had waited nine days since
judgment was handed down in the main application and eight days since
the appellants' notice of application for leave to appeal
was served,
before they launched the rule 49(11) application, which was then set
down with a mere twenty four hours' notice.

[10]
She stated that there was no time to answer the founding affidavit ad
seriatim and
further raised the complaint that the proper administration of
justice was compromised.

[11]
Senior counsel who appeared at the hearing protested that the matter
was not ripe for hearing because of the short notice received
and
that the appellants needed the opportunity to properly consider the
answer and needed to consult with other witnesses and,
if necessary,
obtain affidavits from those potential deponents.

[12]
The transcript of the argument presented to the court a quo
reflects
counsel's submission that the application was not brought as a matter
of urgency and that the papers had to be drafted
the day before the
hearing between 18h00 and midnight. The argument for a postponement
concluded with the following request by
appellants' counsel: 'We want
an opportunity properly to amplify our opposing affidavits and to
deal with this matter on a proper basis." This
request was not granted. The court proceeded to hear argument and
granted the application.

[13]
It
is so, as argued by respondents' counsel, that a rule 49(11)
application is an interlocutory application which may be brought
on
notice supported by such affidavits as the case may require and set
down at a time assigned by the registrar or as directed
by the Judge,
in terms of rule 6(11). (See Airy
v Cross-Boarder Road Transport Agency 2001
(1) SA 737 (T) at 741F-H.)

[14]
This however does not mean that the respondents in such an
application should not be granted a sufficient opportunity to answer.
It is trite that at common law and in terms of the tenets of natural
justice, the application of the audi
alteram partem rule
(described in Pretoria
Portland Cement Co Ltd v Competition Commission 2003
(2) SA 385 (SCA) at [47] as "one of
the most fundamental principles of our law") is
a sine
qua non of
fair proceedings, (see Masetlha
v President of the RSA [2007] ZACC 20; 2008
(1) SA 566 (CC) at [75])

[15]
The refusal of the requested postponement, despite the explicit
protestations in the answering affidavit and in argument, was
not
procedurally justified. It resulted in a miscarriage of justice. As
will appear from my consideration of the point of non-joiner
hereunder, the refusal of the postponement resulted in a finding
prejudicial to the appellants.

[16]
The denial of the appellants' application for a postponement was
unjustified. This appeal therefore has to succeed.

Non-joinder

[17]
Where a party has a direct and substantial interest in any order
which

a
court may make in proceedings, or where an order cannot be sustained
or carried into effect without prejudicing that party, such
party is
a necessary party and should be joined in proceedings (see
Amalgamated
Engineering Union v Minister of Labour 1949
(3) SA 637 (A)).

[18]
To give judgment in the application and to take away certain rights
from the parties that have not been cited, without these parties
being afforded an opportunity of being heard, would be contrary
to
natural justice, (see South
African Railways and Harbours v Chairman, Bophutatswana Central Road
Transportation Board and Another; South African Transport
Services v
Chairman, Bophutatswana Central Road Transportation Board and Another
1982
(3) SA 24 (B))"

[19]
In considering the appellants' point of non-joinder it has to be
borne in mind that the alleged spoliation occurred on 13 June
2007
and that the papers in the main application were served more than a
month later i.e. 19 July 2007. In the interim new occupiers,
employees of the Trust, took occupation of both the houses that were
previously occupied by the respondents.

[20]
In the answering affidavit it is stated that the new occupiers of the
houses are bona
fide, and
had no knowledge of any of the respondents' claims to occupation at
the time that they moved in.

[21]
The court a
quo
rejected
these allegations.

[22]
Although, apparently as a result of recording problems, no typed copy
of the judgment was available, junior counsel for the
appellants
made, according to Ms van der Linde, comprehensive notes of the
judgment. These notes are attached to her answering
affidavit and
read in part as follows:

"Mr
Vorster [respondents' counsel] argued that those tenants were not
there when the answering affidavits were drafted or the
matter argued
- if that was so then this would have been raised as a defence. There
is some merit in that, and I think I can safely
assume that the new
tenants moved in after the affidavit was drafted.

Mr
Vorster looked at this from another angle, as when the appeal court
looks at this there will be no mention of the new tenants
in the
papers, and the presence of the new tenants will not be a factor.

The
order that I gave was one for restoration - if there is a problem
then it is a problem for the respondents."

The
correctness of these notes has not been disputed.

[23]
The court a quo
could
not "safely assume" that the new tenants moved in after the
answering affidavit in the main application was drafted.

[24]
This finding does, as in the case of the main application, not heed
the Plascon-Evans
principle.
The allegations in paragraphs 19 and 20 above stand uncontradicted,
especially as no replying affidavit was filed herein.
This evidence
can not be rejected on the speculation that, had the allegations been
true, they would have been mentioned in the
answering affidavit in
the main application. There was no specific reason for the appellants
to do so. The appellants raised other
defences which are good.

[25]
The plea of non-joinder is therefore good and, on this basis, too,
the appeal has to succeed.

[26]
The passage from the judgment quoted above starkly illustrates the
prejudice caused to the appellants by not giving them the
opportunity
to obtain affidavits from the occupants on the reserve. Had they
sworn to affidavits, the point of non-joinder would
probably have
fallen away as being merely technical, but then it would have been
abundantly clear to the court whether Ms van der
Linde's affidavit
correctly reflected the position or not. If correct, the position of
the new occupants would have been material
to the court's decision.
As it turned out, without this issue having been properly canvassed
on the papers due to the short notice,
the court a quo
rejected
the allegations in respect of the new occupants thereby potentially
causing prejudice to innocent third parties not before
the court.

Rule
49(11) merits

[27]
The court a quo
approached
this application on the basis that there was a reasonable prospect of
success on appeal.

[28]
The decision turned on the balance of hardship or convenience to the
respective parties were execution pending appeal to be
granted or on
the other hand, be refused. Crucial to the court's decision was the
consideration that the respondents had been evicted
from their homes.
This is no doubt a very important factor in favour of the
respondents.

[29]
On the other hand the following factors had to be weighed in favour
of the appellants:

(i)The
respondents' right to occupy the houses was part and parcel of their
employment by the Trust.

(ii)Two
days after their alleged unlawful eviction they signed the compromise
agreement in terms of which they agreed to leave the employ
of the
Trust and to vacate the houses on the reserve. They received
compensation equal to three times their nett monthly salaries.
In
stating the relevance of this factor I keep in mind that the
enforceability of the compromise agreements is attacked in the
main
application on the basis of duress.

(iii)However,
the aforegoing factor has to been seen in the light of the fact that
fifteen days after the alleged spoliation the respondents
approached
the provincial offices of the CCMA (the Council for Conciliation
Mediation and Arbitration existing in terms of the
Labour Relations
Act, 1995) in Polokwane. They did not seek reinstatement. In answer
to the question in the standard LRA form as to the outcome they
required,
they stated "compensation required for 12 months."

(iv)The
main application was served on 19 July 2007.

(v)In
the interim the new occupants had taken occupation of the houses.

(vi)The
appellants raised the concern that, were the respondents to be
allowed to occupy the houses pending the disciplinary inquiry
against
them, their presence might interfere with the inquiry, especially as
witnesses against them stayed on the reserve. This
was a relevant
consideration.

(vii)The
respondents state in their founding affidavit herein that their
living conditions were "at
best uncomfortable and at worst unbearable". Referring
to the founding affidavit in the main application, the facts are that
the first and second respondents were living with
the second
respondent's parents whilst the third and fourth respondents were
staying with the first respondent's sister. On the
basis of these
allegations it can only be accepted that their living conditions were
uncomfortable, and on the other hand it has
to be borne in mind that
they had the three months' pay to obtain other accommodation.

[30]
In exercising a judicial discretion on the aforementioned facts the
court should have found that the rule 49(11) application had to be
refused. The position would have been substantially different had the
respondents brought the spoliation
application immediately and not
approached the CCMA for the relief that they did.

Summary

[31]
I therefore find that the appeal has to succeed on three grounds. The
first two are the failure to allow the appellants their
procedural
rights to answer properly and the non-joinder of interested parties.
On both these aspects the result had to be that
the application could
not have proceeded on the date and the time that it did. Thirdly, the
application had to be refused on the
merits.

[32]
I therefore make the following order:

1.The
appeal succeeds with costs. These costs include the costs of the
application for leave to appeal in the court a quo
as
well as the costs of the application for leave to appeal to the
Supreme Court of Appeal.

2.The
order of the court a
quo is
set aside and is substituted by the following: "The application
is dismissed with costs including the costs of two counsel".

3.All
costs are to include the costs of two counsel, in all instances in
which two counsel were instructed.